The following case is very important to those of us who are interested in the law of self-defense.

I think that most MA’s are interested in the subject matter and I have therefore quoted most of the case exactly as reported (with some comments by me).

A trial judge presiding over a criminal assault and battery trial refused the defendant’s request for a jury instruction on self-defense.

The case was appealed to the Massachusetts Court of Appeals, and the case is Commonwealth v. Safari (not published at this time) (No.99-P-1691) (July 11, 2001)

The Appeals Court found in favor of the defendant who had appealed and went into great detail on the law as well as in the facts creating the case.

The law is that “ when self-defense has been sufficiently raised by the evidence, the defendant is entitled to an instruction that places on the Commonwealth the burden of disproving the factor of self-defense beyond a reasonable doubt…Self-defense can be raised either through evidence presented by the Commonwealth as part of its case-in-chief or through evidence presented by the defense…’in determining whether sufficient evidence of self-defense exists, all reasonable inferences should be resolved in favor of the defendant, and, no matter how incredible his testimony, that testimony must be treated as true’…Viewing the evidence in the light most favorable to the defendant…after Michael Lilly punched the defendant in the back of the head, the defendant turned around, saw a group of six to eight teenagers, and heard his wife yell, “They have a chair in their hand. Be careful.’ The defendant put up his hands trying to defend himself from the group, which included Felix Olibo and Lilly.

“Within about thirty seconds after Officer John Curley had separated Lilly and the defendant by pulling away Lilly, who was punching out defendant, Officer Curley heard more loud noise, turned, and saw the defendant and Olibo holding on to one another, pushing, shoving, and wrestling. Officer Curley then broke up the altercation, telling the defendant to go back into the restaurant, which he did. Officer Curley had to sit Olibo down on the sidewalk and restrain him to calm him down because he was out of control.

“Self-defense was the only theory upon which the defendant relied at the trial. He admitted to having an altercation with Olibo. The defendant’s testimony reflected more than a mere germ of concern for his safety and well being…He stated that he was surrounded by six to eight teenagers, including Olibo, who were throwing punches at him, and that he put his hands out to try and defend himself. The defendant’s wife saw the group of teenagers encircle the defendant and go for the chairs that were located in the restaurant’s patio.

The court goes on to state the law: “We recognize that a judge need not give a self-defense instruction unless there is some evidence that the defendant availed himself of all reasonable means of retreating from the conflict before resorting to self-defense or that no reasonable avenue of escape was available to him…However, viewing the evidence in the light most favorable to the defendant, not withstanding the arrival of Officer Curley on the scene, the jury might well have viewed the incident as but one continuing altercation. When outnumbered and surrounded by several teenagers arming themselves with chairs, the defendant might reasonably have believed that there was no avenue of escape from harm other than by self-defense. The right to defend himself from Olibo would not end with the mere presence of Officer Curley, as he was occupied with Lilly who was excited and needed to be restrained.

“Because the issue of self-defense was sufficiently raised by the evidence, the judge’s denial of defense counsel’s specific request for an instruction on self-defense was erroneous. Moreover, we cannot say with fair assurance that the error did not influence the jury, or had but slight effect. The trial judge’s refusal to give a self-defense instruction constituted prejudicial error requiring reversal. ‘Judgement Reversed Verdict set aside.”

I felt that it was necessary to report all of the case as presented in the synopsis set forth in Lawyer’s Weekly because the exact quoted wording is what we rely on in determining the law as presented and the application of the law as interpreted by the Massachusetts Court of Appeals.

This case is important for martial artists who frequently pose questions and present scenarios relating to the use of force to defend one’s self.

I suggest that reader’s who are interested in the subject read the above more than once and create your own set of fictitious facts and see if the above case helps in your possible answers.

We don’t always get cases that are so direct that they answer many questions.

As an example in summary of some of the elements for successful assertion of self-defense rights.:

1. There may be a need to retreat.

2. The evidence may be from the facts of the case that the jury can interpret.

3. The SD defense right might be ongoing despite the presence of an LEO under certain circumstances.

4. In the event of multiple attackers, the court recognizes the ongoing need to defend.

5. The evidence of the defendant in self-defense matters must be taken most favorably to the defendant charged with assault and battery as in this case.

6. The burden of proof may change to require the government to show that the self-defense issue should not apply to the defendant instead of the other way around.

7. All reasonable inferences should be considered by the jury in favor of the defendant when the evidence is read in the light most favorable to the defendant.

8. The State’s evidence might support the self –defense right to plead, as well as the evidence presented by the defendant

There are many more issues raised by this case, but IMHO this gives us a lot to play with in the law relating to self-defense in the Commonwealth of Massachusetts.

In response to your inquiry concerning the costs of the trial by jury followed by an appeal and hearing by the appelate court, I can only guess that it would probably be in the area of 15 to 20 thousand dollars and could be more depending on the length of the trial, the briefs filed, the amount of investigation and discovery. You can see in this case, a lot of people were involved, which generally means a lot of trial time and pleadings filed. Also an unknown factor is counsel fees which can vary from $125.00 to about $300.00 per hour. The costs of court reporters, perhaps private investigations and the like.You have raised a good issue that we never discuss in these forums, and that is the steep price one pays for good defense in a criminal case.

"Equal Protection Under the Law - IF You Can Pay For It! Will That Be cash, check or Your First Born Male Child?"

Attributed to Clarence Darrow in a sarcastic mood over hearing about other attorney's fees.

As my friend student sent to me, not long ago, "If you think talk is cheap, hire a lawyer."

It is a pity and a shame that defending your right to defend yourself costs so (*&^%#$ much.

Thanks for the post, Alan. Very informative. Was our hero able to recoup costs? I understand that this is not likely. <BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Alan K:Nick,

In response to your inquiry concerning the costs of the trial by jury followed by an appeal and hearing by the appelate court, I can only guess that it would probably be in the area of 15 to 20 thousand dollars and could be more depending on the length of the trial, the briefs filed, the amount of investigation and discovery. You can see in this case, a lot of people were involved, which generally means a lot of trial time and pleadings filed. Also an unknown factor is counsel fees which can vary from $125.00 to about $300.00 per hour. The costs of court reporters, perhaps private investigations and the like.You have raised a good issue that we never discuss in these forums, and that is the steep price one pays for good defense in a criminal case.

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